IN THE HON'BLE HIGH
COURT OF BOMBAY
CWP No.:_______ of 2021
Petitioner
Versus
Respondents
List
of Events
Dates ______
Events ______
1.
2.
3.
4.
Mumbai
Petitioner
Through, Advocate
IN THE HON'BLE HIGH COURT OF BOMBAY
CWP
No:______ of 2021
Petitioner
Versus
Respondents
Mumbai
Petitioner
Through, Advocate
Respectfully Sheweth;
1. That
your Lordship's humble petitioner is a citizen of India and on the grounds
hereinafter mentioned is entitled to file and maintain the present writ
petition before this Hon'ble Court.
2. ______
3. That
the petitioner is invoking the extra-ordinary jurisdiction of this Hon'ble
court and seeking indulgence on the following grounds amongst other each one of
which is without prejudice to and independent of other :-
(a) That
such an act of omission and commission on the part of the respondent whereby
they have ______, is illegal, arbitrary, malafide, discriminatory, and against
the well-established principles of natural justice as well as violative of the
mandatory provisions of the Constitution of India.
(b) That
______
(c)
_______That the term
dependent has been defined in The Employees' State Insurance Act, 1948 as
under:- "[(6A) 'dependent' means any of the following relatives of a
deceased insured person, namely: - (i) A
widow, a minor legitimate or adopted son, an unmarried legitimate or adopted
daughter;
(ia) A widowed mother;
(ii)
If wholly dependent on the
earnings of the insured person at the time of his death, a legitimate or
adopted son or daughter who has attained the age of eighteen years and is
infirm;
(iii)
If wholly or in part
dependent on the earnings of the insured person at the time of his death,
-
(a)
A parent other than a
widowed mother,
(b)
A minor illegitimate son, an
unmarried illegitimate daughter or a daughter legitimate or adopted or
illegitimate if married and a minor or if widowed and a minor;
(c)
A minor brother or an
unmarried sister or a widowed sister if a minor,
(d)
A widowed
daughter-in-law,
(e)
A minor child of a
pre-deceased son,
(f)
A minor child of a
pre-deceased daughter where no parent of the child is alive, or
(g)
A paternal grand-parent if
no parent of the insured person is alive;"
(ii) That the word
"dependent" has similarly been defined in The Workmen's Compensation
Act, 1923 vide Section 2 (c).
(d)
______________________________
That the petitioner is entitled for compassionate appointment even when his
brother who is in employment but living separately right since the lifetime of
his deceased father and is in no way supporting the family of the deceased
employee.
(e)
_____ That the object of
Clause 5 (c) of the instructions is to mitigate the financial difficulties of
the family of the deceased employee. The same object cannot bee annulled simply
because one son of the deceased employee is already in service and in no way
supporting the family of deceased employee. Such condition runs contradictory
to the object behind the scheme. The Clause 5 (c) is reproduced
hereunder:-
"5. Eligibility: -
(c) In all cases where one
or more members of the family are already in Government service or in
employment of Autonomous bodies/Boards/Corporations etc; of the State/Central
Government, employment assistance should not under any circumstances be provided
to the second or third member of the family. In cases, however, where the widow
of the deceased Government servant represents or claims that her employed
sons/daughters are not supporting her, the request of employment assistance
should be considered only in respect of the widow. Even for allowing
compassionate appointment to the widow in such cases the opinion of the
Department of Personnel and Finance Department should specifically be sought
and Finance Department should specifically be sought and the matter finally
decided by the Council of Ministers"
(f)
______That the law in this
regard is well-settled as has been laid down in this regard by the Hon'ble High
Court of TN in CWP 635/1984 decided on 20.05.1985, wherein the Hon'ble High
Court of TN while dealing with almost the similar situation has held in the
penultimate paragraph that "Aravindan had submitted that liberty should be
reserved to the respondent to take action afresh against the petitioner in
accordance with law. We do not think, on the facts and in the circumstances of
the case, such liberty should be reserved. The petitioner was first employed in
August 1981. Her services were terminated in June 1984 but the termination
order was withdrawn and she continued in service till the impugned order was
passed on October 31, 1984. She has thus served for about 3 1/4 years. Her
conduct has been above reproach since she is not shown to have suppressed the
material fact regarding the employment of her two brothers. Her version that
the brothers were living separately and were not maintaining her and her
widowed mother given out at the very first stage was not only duly verified by
the Pradhan of the Gram Panchayat and the Executive Magistrate but has not been
fond to be incorrect on the basis of any proper inquiry held so far. Even in
the return it is not stated that upon any inquiry independently made by the
respondent the version is found to be incorrect, although the petitioner has
re-asserted on oath the same version in the petition. The case apparently is
not covered by the relevant instructions governing the recruitment procedure
having regard to the definition of the word "family". The petitioner
has to support herself and her mother who widowed eleven years back when the
petitioner's father died in a motor accident. Having regard to all the
circumstances, we are of the view that the petitioner should be spared of any
further agony and trouble and that the chapter must be treated as
closed."
(g)
_____That the similar view
has been taken by the Hon'ble High Court of TN in CWP No. 326 of 1992 decided
on 04.01.1993 while dealing with above provision in the penultimate para has
held that:- "We have gone through the matter carefully with the kind help
extended by the learned counsel for the parties. We have noticed that Shri.
Hari Dass is, of course, the son of the deceased but he has been living
separately from Shri Devi and her other issues. He was in the service of the
Corporation even while the deceased was alive. The fact as to his separate
living gains support from the certificate of Pradhan Gram Panchayat, Satrol
(Annexure-PE), affidavit of Shri Devi (Annexure PC) and affidavit of Hari Dass
(Annexure PD). If these affidavits are read with the definition of 'family'
contained in Rule 2 (e) (ii) of the Municipal Employees (Conduct) Rules, 1970,
it is absolutely clear that a son who is living separate from the family is not
a member of the family. Even otherwise, the facts of this case, as already
notices above, demonstrate quite clearly that Hari Dass was living separately
and was in employment while the deceased was also in the employment of the
respondent-Corporation. The widow of the deceased has also supported it and
wants the present petitioner employed in the Corporation. So are the affidavits
of other relations. Same is the position explained in Supplementary Rules,
Section IV, Division II, SR 2(8). The view we have taken, has also been taken
by the Karnatka High Court in 1992 (1) Labour Law Journal
129, Raja (K) Vs Karnatka
Electricity Board."
(h)
_______That in the last para
of the above judgment the Hon'ble High court has held that "The result of
the aforesaid discussion is that this writ petition is allowed and the
respondent Corporation is directed to employ the petitioner to the service of
the Municipal Corporation against a post which is in consonance with his
qualifications. In case no vacancy is available, the same be created to employ
the petitioner. We allow the respondent Corporation three months time for this
purpose."
(i)
___J __That the similar view
has been taken by the Hon'ble High Court of Mumbai in case Monica Devi Vs LIC
(1993 (3) Service Cases Today), Santosh Tuli Vs UOI (1995 (4) SCT 267), Hon'ble
High Court of
TN in Chhabi Sood Vs
Chairman, Tamil Nadu Gramin Bank (1994 (3) SCT 724/725), Hon'ble Karnatka High
Court in Shusheela B Bhakta
Vs Karnatka State Road Transport Corporation (1995 (3) SCT 382), Hon'ble
Jammu
& Kashmir
High Court
in Anwar
Farooqi Vs
UOI (1998
(3) SCT
794/795).
(j)
______That the underlying
object of the policy framed by the state government dated 18.01.1990 is to
provide employment assistance to the dependents of Govt. servants, who die
while in Govt service, leaving their families in indigent circumstances as has
been stated at outset of the policy. In the instant case too the family of the
deceased employee was left in indigent condition by his death. His elder son
has already severed his relations with his father and other family members
during his lifetime. The wife of the deceased employee is illiterate and not in
a position to serve in the respondent department. It is further submitted that
the separation of brother of the petitioner is not being used as ploy by the
petitioner for getting the appointment on compassionate basis but he is
actually living separately since life time of the deceased employee due to
restrained relations with the family and he is in no way supporting the family
of the deceased employee and in this respect the overwhelming evidence was already
brought before the respondent department and this tribunal.
(k)
That the respondents are
estopped due to their own act, deed and conduct. The principle of the
Promissory Estopple applies against the respondents.
(l)
That the impugned order is
against the well settled principles of the law as laid down by the Hon'ble
Supreme Court and this Hon'ble Tribunal in catena of cases.
3.
That the petitioner has no
other speedy and efficacious remedy available except to approach this Hon'ble
court by way of the present writ petition.
4.
That the petitioner has not
filed any other writ petition on same or similar grounds either before this
Hon'ble court or before the Supreme Court of India.
5.
That the petitioner,
therefore, prays that an appropriate writ, order or directions be issued for
the following reliefs :-
(a) Quash
the impugned order _______;
(b) Direct
the respondents ______;
(c) Direct
the respondents to produce all the relevant records along with reply for
perusal by this Hon'ble court;
(d) Allow
the cost of this writ petition to the petitioner, and;
(e) Allow
such other relief or pass such other orders as deemed fit and proper in the
facts and circumstances of the case in favour of the petitioner and justice be
done. [CD4]
AND FOR THIS ACT OF
KINDNESS, THE HUMBLE PETITIONER AS IN DUTY BOUND, SHALL EVER PRAY.
Mumbai
Petitioner
Through,
Advocate
IN THE HON'BLE HIGH COURT OF
BOMBAY
CWP No:______ of 2021 [CD5]
Petitioner
Versus
Respondents
Affidavit in support of the
Civil Writ Petition under Articles 226/227 of the Constitution of India.
I,______, do hereby solemnly
affirm and declare as under :
1. That
the accompanying writ petition has been prepared under my instructions.
2. That
the contents of paras 1 to ______ of the accompanying writ petition are correct
and true to the best of my knowledge.
3. That
I further solemnly affirm and declare that this affidavit of mine is correct
and no part of it is false and nothing material has been concealed
therein. [CD6]
Affirmed at Mumbai this the
______.
Deponent
IN THE HON'BLE HIGH COURT OF
BOMBAY
CMP No.:_____ of 2021 in CWP
No:______ of 2021 [CD7]
Petitioner/Applicants
Versus
Respondents/Non-Applicants
Application Under Rule 2 of
the Writ Rules for dispensing with Seven days’ notice of motion
Respectfully Sheweth:
1. That
the petitioner/applicant has filed the above-mentioned writ petition in this
Hon'ble court.
2. That
on perusal of the allegations made in the writ petition and the documents
attached therewith it is evident that
the matter is of urgent nature and dispensing with of seven days’ notice is
essential in the
interest
of justice.
3. It
is, therefore, prayed that this application may be allowed and seven days’
notice of motion dispensed with and writ petition be listed immediately. [CD8]
Mumbai
Petitioner/Applicant
Through, Advocate
IN
THE HON'BLE HIGH COURT OF BOMBAY
C.
M. P. No.: ______ of 2021 in CWP No:______ of 2021
Petitioner/Applicant
Versus
Respondents/Non-Applicants
Affidavit in support of the
application under Rule 2 of the Writ Rules.
I,
_____________________________, do hereby solemnly affirm and declare as under
:-
1. That
the accompanying application has been prepared under my instructions.
2. That
the contents of paras 1 to 3 of the accompanying application are correct and
true to the best of my knowledge.
3. That
I further solemnly affirm and declare that this affidavit of mine is correct
and no part of it is false and nothing
material has been concealed therein. [CD9]
Affirmed at Mumbai this the
_______________________.
Deponent
IN THE HON'BLE HIGH COURT OF
BOMBAY
CMP No.:______ of 2021 in
CWP No:______ of 2021
Petitioner/Applicant
Versus
Respondents/Non-Applicants
Application
Under Rule 4 of the Writ Rules for Ad interim orders [CD10]
Respectfully Sheweth:
1. That
the petitioner/applicant has filed the above mentioned writ petition in this
Hon'ble court.
2. That
on perusal of the allegations made in the writ petition and the documents
attached therewith it is evident that
the petitioner/applicants have prima facie a very good case in their favour and
the writ petition is likely to succeed.
The Balance of Convenience is in favour of the petitioners/applicants.
3. That
the interest of justice demands that during the pendency of the writ petition
____
4. It
is, therefore, prayed that this application may be allowed and __ in the
interest of justice. Such other orders
may also be passed in favour of the petitioners as deemed fit and proper by
this Hon'ble court in the facts and
circumstances of the case.
Mumbai
Petitioner/Applicant
Through, Advocate
IN
THE HON'BLE HIGH COURT OF BOMBAY
C.
M. P. No.:______ of 2021 in CWP No:______ of 2021
Petitioner/Applicant
Versus
Respondents/Non-Applicants
Affidavit in support of the
application Under Rule 4 of the Writ Rules.
I,
__________________________, do hereby solemnly affirm and declare as under
:-
1. That
the accompanying application has been prepared under my instructions.
2. That
the contents of paras 1 to 4 of the accompanying application are correct and
true to the best of my knowledge.
3. That
I further solemnly affirm and declare that this affidavit of mine is correct
and no part of it is false and nothing
material has been concealed therein. [CD11]
Affirmed at Mumbai this the
______.
Deponent
In the HIGH COURT OF BOMBAY
Mention
Memo
1. Number
& Nature of case: _______
Vs
2. Party
seeking posting:
Petitioner/Appellant
3. Name
of Advocate of :
_______Advocate
party seeking posting.
4. Name
of Advocate :
_______
appearing for the opposite
party
5. Mention
for:
Motion/Admission/Orders.
6. Reason
for the mention: ________
7. Date
on which posting is sought: _________
Mumbai
_______
Advocate
[CD2]CIVIL WRIT PETITION UNDER ARTICLE 226/227 OF
THE CONSTITUTION OF INDIA FOR APPROPRIATE WRIT, ORDER OR DIRECTIONS TO THE
RESPONDENTS
[CD4]Prayers
[CD5]Affidavit
in support of the Civil Writ Petition under Articles 226/227 of the
Constitution of India.
[CD6]Affidavit
in support of the Civil Writ Petition under Articles 226/227 of the
Constitution of India.
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